Fives Extend Mezzanatto, Hold Defendant Can Waive Right to Keep Prosecution from Using Plea-Discussion Statements In Case-In-Chief

As you know, FRE 410 and Federal Rule of Criminal Procedure 11(f) render statements made during plea discussions inadmissible at trial. As you also know, the Supreme Court held in United States v. Mezzanatto that a defendant may waive that privilege, as least to the extent of allowing the Government to use such statements to impeach the defendant if he testifies at trial. Which brings us to the question presented in Sylvester, "an issue of first impression in this court: whether the government may use a defendant’s statements made in the course of plea negotiations in its case-in-chief, when the defendant, as a condition to engaging in negotiations with the government, knowingly and voluntarily waived all rights to object to such use."

As it turns out, the question is slightly more complicated than simply whether to extend Mezzanatto, given the way the Justices' votes broke down in that case:

In the seminal case of United States v. Mezzanatto, seven members of the Supreme Court held that a criminal defendant can waive Rule 410 protection and make otherwise excludable plea statements admissible at trial “absent some affirmative indication that the agreement was entered into unknowingly or involuntarily.” Notwithstanding this broad pronouncement, the Court in Mezzanatto upheld a more limited waiver than Sylvester’s, one that allowed the government to use statements made in plea negotiations to impeach the defendant if he testified at trial, and five justices expressed doubt as to whether a waiver could be used to admit the defendant’s statements in the government’s case-in-chief. Two dissenters disavowed waiver entirely, while three justices concurred to raise the question of whether “a waiver to use such statements in the case-in-chief would more severely undermine a defendant’s incentive to negotiate,” thereby presenting a more pressing public policy justification for disallowing waiver.

Nonetheless, the court found "no convincing reason for not extending Mezzanatto's rationale to this case." And what might that reasoning be?

The Mezzanatto majority proceeded from the premise that rights—especially evidentiary rights—are waivable, absent some affirmative indication that Congress thought otherwise. Nothing in FRE 410 or Rule 11 indicates that Congress meant to bar waiver, so the question becomes whether there are any policy reasons for doing so. Protecting the intergrity of the judicial system? Nope. Making the jury aware of prior inconsistent statements serves the truth-seeking function of trials. "Rule 410's goal of encouraging voluntary settlement[?]" Nope. Allowing the parties to negotiate "without any arbitrary limits to their bargaining chips" is a sound way to encourage settlement. What about an invitation to "prosecutorial overreaching and abuse[?]" No again. Defendants have to make lots of hard decisions, "and, absent specific evidence that the agreement was entered into unknowing or involuntarily, courts cannot infer abuse of prosecutorial bargaining power."

Sylvester tried to draw a distinction between allowing evidence to be used for impeachment or rebuttal, rather than in the prosecution's case-in-chief. The court found that to be a distinction without a difference. At least four other circuits have already extended Mezzanatto to "rebuttal waivers." And "Justice Souter’s Mezzanatto dissent (in which Justice Stevens joined) saw no principled limit to the Court’s approach to waiver: '[i]f objection can be waived for impeachment use, it can be waived for use as affirmative evidence.' Whether a sincere statement, or rhetorical flourish, we agree with Justice Souter on that account–as do two sister circuits."

One concern Sylvester raised is that allowing case-in-chief waivers, as opposed to just impeachment or rebuttal waivers, could discourage defendants from engaging in plea negotiations. But "neither Sylvester nor case law has provided any supporting reason why this may be so." The court considered it "unlikely . . . that any significant number of defendants would draw fine distinctions as to whether statements made in the course of plea negotiations could be used in the government’s case-in-chief or only for impeachment and rebuttal." Plus, the distinction is "somewhat illusory," because "a rebuttal waiver might be worded so broadly as to allow admission of plea statements in the government’s case-in-chief; in other words, 'rebuttal' will sometimes mean the countering of factual assertions made during defense counsel’s opening statement or cross- examination of government witnesses."

From this perspective, case-in-chief waivers serve two salient prosecutorial functions that broad rebuttal waivers cannot. First, case-in-chief waivers allow the prosecution to use the defendant’s plea statements in an opening statement. Second, they admit plea statements even if the defendant limits his defense to credibility impeachment of government witnesses or essentially declines to wage any defense at all. These differences may well be cognizable in an abstract, ex post sense, but Sylvester has not convinced us that they have in practice or would in theory persuade any significant number of defendants to refuse a case-in-chief waiver, in favor of one limited to use in rebuttal. That now, with the clarity of hindsight, he might wish for a different consequence, does not demand upending a knowing and voluntary agreement.

The court also rejected a second concern Sylvester brought up: "that refusing to allow case-in-chief waivers will enhance or protect the reliability of the fact-finding process[.]" As the court put it, "Sylvester’s path would lead us farther from the truth, not closer. If anything, to ignore relevant evidence of culpability simply because that evidence was discovered during the course of plea negotiations would arguably undermine the truth-seeking function of our criminal justice system."

Finally—in what is perhaps the most important part of the opinion—the court made a point of saying that there are limits on such waivers:

Mezzanatto specifically encourages “case-by-case inquiries into whether waiver agreements are the product of fraud or coercion.” As obvious as this statement may be, we mention it only to cabin Sylvester’s appeal from those of future defendants and make plain that we do not hold today that disparity in bargaining power will never render a plea-statement waiver involuntary.

While even “gross disparity” in relative bargaining power does not mean waiver is “inherently unfair and coercive,” we are not prepared to say that rank difference in individual cases cannot render the defendant’s plea involuntary. We acknowledge the proposition that “to the extent that there is a disparity between the parties’ bargaining positions, it is likely attributable to the Government’s evidence of the defendant’s guilt,” but also must note that this rule of thumb is not invariably true. The hazard of an impulsive and improvident response to a seeming but unreal advantage might prove coercive, as might misrepresentations or manufactured evidence that overbear the will of the defendant with a meaningful defense. But nothing of the sort is alleged here, and given the die cast by Mezzanatto, we can find no reason to discern between the waiver countenanced in that case and Sylvester’s.

Finally, despite the reality that allowing waiver in circumstances where the government could not prove one or more elements of an offense without the defendant’s statement presents a distinct line for possible limitation of waiver [presumably a reference to the corpus delicti/confession-corroboration rule], the argument is not made here and the sweep of Mezzanatto’s language offers little hope for such line drawing by inferior courts–a line that only the high court can draw, in a case where the contention is made.

(emphasis added). So expect continued litigation over such waivers, especially if prosecutors start widely insisting on them as a precondition to plea discussions.

Thursday, September 17, 2009

Third Circuit Weighs In On Circuit Split Over Fast-Track Variances; Disagrees With Fifth

For over a year now, there has been a circuit split over whether a district court may vary from the advisory Guidelines range due to georgraphic disparities created by the availability of fast-track departures in some districts, but not others. Our own circuit, in United States v. Gomez-Herrera, has held that not only are district courts not required to consider sentencing disparities created by differing fast-track policies around the country, but that it would be an abuse of discretion to do so. (Although there's potentially an argument that the Supreme Court's decision in Spears constitutes intervening Supreme Court precedent that abrogates Gomez-Herrera.) The First Circuit has decided otherwise, expressly disagreeing with Gomez-Herrera's reasoning.

Paradoxically, the Fifth Circuit Court case, Gomez-Herrera, 523 F.3d 554, which relied on the congressional policy rationale to differentiate the fast-track issue from Kimbrough, appears to have curtailed a district court’s sentencing discretion post-Kimbrough more than it had before that decision. The Court at first stated that it

"has never held that a district court may not consider and give effect to defendant’s argument for a reduced sentence on th[e] basis [of a fast-track disparity]. Rather our cases have only concluded that a district court is not required to factor in, when sentencing a defendant, the sentencing disparity caused by early disposition programs to prevent a sentence from being unreasonable."

Gomez-Herrera, 523 F.3d at 558 n.1 (internal quotations and citations omitted). Yet it went on to say that post-Kimbrough “it would be an abuse of discretion for the district court to deviate from the Guidelines on the basis of sentencing disparity resulting from fast track programs that was intended by Congress. . . . [This deviation] would result from an erroneous view of the law.” Id. at 563 n.4 (citation omitted). In light of Kimbrough, this statement strays from the standard set by the Supreme Court. In its sentencing cases post-Booker, the Court has been clear that a sentencing judge has discretion to impose a sentence grounded in the § 3553(a) factors regardless whether it varies from the Guidelines range. See, e.g., Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456 (2007); Gall, 128 S. Ct. at 597.

Which is not to say that the Third Circuit will allow district courts to vary willy-nilly on the basis of fast-track disparities: "A generalized argument to a district court that a defendant should be sentenced below the Guidelines range because of fast-track disparity is alone not sufficient to justify such a variance." That's because "[t]he fast-track disparity applies to a segment of immigration defendants that are unfortuitously prosecuted in non-fast-track districts (but would have qualified for fast-track treatment), whereas the crack/powder cocaine disparity applies to crack defendants across-the-board." Consequently, "[t]o justify a reasonable variance by the district court, a defendant must show at the outset that he would qualify for fast-track disposition in a fast-track district."

The Third Circuit's opinion notes that the Ninth and Eleventh Circuits have gone along with Gomez-Herrera, so we've got at least a 3-2 split on the issue. Perhaps the Supreme Court will decide it's time to step into the fray and resolve this split. There's no shortage of cert petitions presenting the issue.